Prefontaine v. Richards

New York Supreme Court

Prefontaine v. Richards

54 N.Y. Sup. Ct. 418, 14 N.Y. St. Rep. 344

DecidedFebruary 15, 1888

StatusPublished

This text of 54 N.Y. Sup. Ct. 418 (Prefontaine v. Richards) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Prefontaine v. Richards, 54 N.Y. Sup. Ct. 418, 14 N.Y. St. Rep. 344 (N.Y. Super. Ct. 1888).

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Opinion

LaNBON, P. J.:

The condition of the undertaking is that Richards shall pay Prefontaine “ such damages not exceeding the sum of $250, as Prefontaine may sustain by reason of such injunction, if the court finally decides that the said plaintiff was not entitled thereto.”

No such decision has been made. The action in which the injunction was issued was to restrain Prefontaine from selling the property mortgaged by Richards to him, to secure the payment of $1,000. Upon the trial of that action upon the oral stipulation of counsel that $511 were due upon the mortgage, judgment for that sum was directed, also that the injunction be and the same is “ absolutely dissolved and vacated.” As in Johnson v. Elwood (82 N. Y., 362 ; Palmer v. Foley (71 id., 106); Benedict v. Benedict (15 Hun, 306), no determination has been made as to the original right of Richards to the injunction. A proper case may have existed entitling Richards to an injunction “ until the further order of the court,” as this' [421]*421was in order to prevent tbe sale of property under a mortgage for $1,000, upon which only $511 weré due. Who knows whether he was entitled to it or not % The court upon the trial of the case did not decide the question, and it remains open.

.It is said that the judgment of the court vacating the injunction is equivalent to a decision that the plaintiff was not originally entitled to it. But we do not know, that if he had not procured the injunction his property wordd have been sold upon a larger claim than was just, and that by means of the injunction he has been protected from threatened injury. We do not know but that the injunction was proper until the true sum due was ascertained, and that then and then only it was proper to vacate it.' The defendants are liable according to the terms of their undertaking, and not otherwise. I advise a reversal of the judgment.

PaeKbe, J., concurred.

Fish, J.:

I was quite inclined, upon first examination of this case, and had ’ in fact concluded that the result as found before the referee, followed by judgment, etc., was equivalent to a judgment of the court that Richards was not entitled to the injunction order at the time it was granted. Upon reflection, however, and upon a more careful reading of cases (Johnson v. Elwood 82 N. Y., 362; Benedict v. Benedict, 15 Hun, 306), I am persuaded that the recovery herein cannot be upheld and concur with the opinion of brother' LaNdoN in favor of reversal.

Judgment reversed, new trial granted, costs to abide event.

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LaNBON, P. J.:

The condition of the undertaking is that Richards shall pay Prefontaine “ such damages not exceeding the sum of $250, as Prefontaine may sustain by reason of such injunction, if the court finally decides that the said plaintiff was not entitled thereto.”

No such decision has been made. The action in which the injunction was issued was to restrain Prefontaine from selling the property mortgaged by Richards to him, to secure the payment of $1,000. Upon the trial of that action upon the oral stipulation of counsel that $511 were due upon the mortgage, judgment for that sum was directed, also that the injunction be and the same is “ absolutely dissolved and vacated.” As in Johnson v. Elwood (82 N. Y., 362 ; Palmer v. Foley (71 id., 106); Benedict v. Benedict (15 Hun, 306), no determination has been made as to the original right of Richards to the injunction. A proper case may have existed entitling Richards to an injunction “ until the further order of the court,” as this' [421]*421was in order to prevent tbe sale of property under a mortgage for $1,000, upon which only $511 weré due. Who knows whether he was entitled to it or not % The court upon the trial of the case did not decide the question, and it remains open.

.It is said that the judgment of the court vacating the injunction is equivalent to a decision that the plaintiff was not originally entitled to it. But we do not know, that if he had not procured the injunction his property wordd have been sold upon a larger claim than was just, and that by means of the injunction he has been protected from threatened injury. We do not know but that the injunction was proper until the true sum due was ascertained, and that then and then only it was proper to vacate it.' The defendants are liable according to the terms of their undertaking, and not otherwise. I advise a reversal of the judgment.

PaeKbe, J., concurred.

Fish, J.:

I was quite inclined, upon first examination of this case, and had ’ in fact concluded that the result as found before the referee, followed by judgment, etc., was equivalent to a judgment of the court that Richards was not entitled to the injunction order at the time it was granted. Upon reflection, however, and upon a more careful reading of cases (Johnson v. Elwood 82 N. Y., 362; Benedict v. Benedict, 15 Hun, 306), I am persuaded that the recovery herein cannot be upheld and concur with the opinion of brother' LaNdoN in favor of reversal.

Judgment reversed, new trial granted, costs to abide event.

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54 N.Y. Sup. Ct. 418, 14 N.Y. St. Rep. 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prefontaine-v-richards-nysupct-1888.

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